UNIVERSITI TEKNOLOGI MARA LEGAL FRAMEWORK OF ALTERNATIVE DISPUTE RESOLUTION IN TRIBUNAL FOR CONSUMER CLAIMS IN MALAYSIA

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UNIVERSITI TEKNOLOGI MARA

LEGAL FRAMEWORK OF ALTERNATIVE DISPUTE

RESOLUTION IN TRIBUNAL FOR CONSUMER CLAIMS IN MALAYSIA

SU’AIDA BINTI SAFEI

Thesis submitted in fulfillment of the requirements for the degree of

Doctoral of Philosophy (Law)

Faculty of Law

April 2022

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ABSTRACT

The Tribunal for Consumer Claims (TCC) was established to provide an easier and a speedier mechanism for consumers to seek redress against the traders outside the court.

The President of the TCC is allowed in section 107 of the Consumer Protection Act 1999 (CPA) to assist parties in negotiating their settlement. However, the non- specification of the settlement method led to the wide discretion of the President. The imbalance capability of disputing parties due to non-legal representation, enforcement of awards and difficulties faced by the President in deciding technical issues are also unsettled issues. This thesis, firstly, aims to identify the relevant provisions governing the TCC, which contain elements of alternative dispute resolution (ADR) in the CPA and the Consumer Protection (the Tribunal for Consumer Claims) Regulations 1999 (TCC Regulations) in enhancing its role as an alternative method to litigation in court.

In acknowledging the different behaviours (such as the weak, the confused and the vulnerable consumers) of consumers and with the aim of empowering consumers, the thesis analyses the legal position in the operation of TCC at different stages, namely, the pre-hearing stage, the “hearing” stage and the post-hearing stage. Content analysis on the relevant statutes, observations and interviews are adopted in this thesis. A comparative study is also made on the practice of court mediation in the Malaysian courts, the practices of Tribunals in the area of consumer disputes in Australia (the Civil and Administrative Tribunal in Queensland and the Civil and Administrative Tribunal in New South Wales), the Disputes Tribunal in New Zealand, the Small Claims Tribunal in Singapore, the practice of lay judges in France and Germany and the practice of having lay participation in the decision making at the Industrial Court and at the Disciplinary Board of the legal profession in Malaysia for lessons to be learned. By adopting the qualitative method and the doctrinal legal research method, it is suggested that a suitable framework for ADR at the TCC includes to identify the specific ADR, to add the different categories of members of TCC, to include the lay participation in the composition of members at TCC, to enhance the use of technology in the hearing, to add the representatives of parties, to allow legal representation in certain circumstances, to introduce the internal appeal and to improve the enforcement of award. It is hoped that the suggested framework will lead to a better implementation of ADR at TCC, and consequently, improve the TCC’s function as a better dispute resolution mechanism for consumers, and at the same time empowering the consumers.

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ACKNOWLEDGEMENT

My infinite and deep gratitude to Allah, the Almighty, for gracing me the opportunity to complete my Ph.D. study and overcoming this long and challenging journey successfully. I wish to express my sincere appreciation to the Government of Malaysia for granting me the scholarship funding to pursue my Ph.D. studies under the SLAB / SLAI scheme (August 2012 - February 2016). I would also like to extend my sincere thanks to the Dean of the Faculty of Law, Universiti Teknologi MARA, Shah Alam, Assoc. Prof. Dr. Hartini Saripan for her support and encouragement.

My special thanks to my esteemed supervisor Prof. Dr. Nuraisyah Chua Abdullah, for her endless patience, dedication, continuous support and invaluable guidance until the end of this journey.

I am particularly indebted to my supportive and loving husband, Amaluddin Fikry, and our four children; Aiman Syakiran, Afif Syazri, Amira Samiha and Arisya Salsabila, who illuminate my life with lively atmosphere and joy. They have always been there with me in my academic lifeline. My heartfelt appreciation to my siblings; Assoc. Prof.

Datuk Dr. Haji Su’aidi, Haji Suzaimi, Suzaiman, Suzaimah, Dr. Suhailan and Suhaili, and their caring families who continuously equipped me with their generosity, loving- kindness and constant support.

I would like to express my gratitude to my close friend, Mrs. Rozlinda Abdullah, for her companionship and moral support throughout my Ph.D. journey. My appreciation also goes to all my colleagues for their inspiration and encouragement, including, Assoc. Prof. Datin Dr Musrifah, Dr. Azni, Dr. Faridah, Mrs. Nurulhuda Adabiah, Datin Dr Rafidah, Dr Norazlina, Mr Adlan, Mr Izuan Izzaidi, Dr Siti Hafsyah, Dr Siti Sarah, Dr Ilyana, Dr Farizah, Dr Habibun, Mrs. Azlena, Ms. Norliza, Dr. Hariati, and Dr.

Noraziah. I would also like to record my appreciation to my two part-time research assistants, Mr. Ahmad Afiq and Ms. Khairiah for their clerical and technological support.

I am also grateful to my mentor, Dr. Khairul Nizam Zainan Nazri (or is well-known as

“Dr. Roket”), who is assisted by his wife, Dr. Mardiana and the whole team of 2M World Sdn. Bhd. for guiding the postgraduate students mentally and physically and sharing their respective knowledge and expertise. I am also thankful to be surrounded by a positive circle of friends called Platinums, especially my fantastic batch, Platinum 4.1. Your constant support and encouragement throughout the years had made my Ph.D.

journey far from lonely.

Foremost, this thesis is lovingly dedicated to the memory of my late dear father, Dato’

Haji Safei bin Daud. He may not live long enough to see his daughter through her Ph.D.

journey, but still, he instilled a thirst for knowledge and profound impact on me. I also dedicate this thesis to my late dear mother, To' Puan Hajjah Che' Aeshah binti Sulaiman, who always pray for my success and give affection to me. Once again, thanks to my beloved father and mother for the vision and determination in educating me; your spirit and love live forever in my heart. I humbly present this piece of victory to both of you.

Walhamdulillah fi awwali-hi wa-akhiri-hi.

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CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background of Research

The Tribunal for Consumer Claims (hereinafter referred to as “TCC”) was established by Part XII of the Consumer Protection Act 1999 (hereinafter referred to as

“CPA”) and is regulated by the Consumer Protection (the Tribunal for Consumer Claims) Regulations 1999 (hereinafter referred to as “TCC Regulations”). The TCC came into force on 15 November 1999. The TCC operates under the Ministry of Domestic Trade and Consumer Affairs.¹

Before the establishment of the TCC, all disputes between a consumer and a supplier or a manufacturer have to be brought before a civil court, which often involves protracted trials, high legal and other costs, not to mention the long delays. These are perhaps some reasons consumers are reluctant to pursue their claims against irresponsible or unscrupulous suppliers or manufacturers in the court, especially when the amounts claimed are small.²

The TCC can be seen as a form of alternative dispute resolution (hereinafter referred to as “ADR”). This is because it fits into the main features of ADR, which involves dispute resolution processes and techniques that fall outside the court system.³ Some provisions of the CPA support this, which can be seen in section 107 and section 118. Section 107 allows the TCC to assist the parties to negotiate an agreed settlement in relation to the claim. This is consistent with the elements of ADR in that it involves the assistance of a neutral third party to facilitate resolution.⁴ Section 118 states that the

1 Official Portal KPDNHEP. (2013, May 13). Tribunal Consumer Claims.

http://www.ttpm.kpdnhep.gov.my See also Safei, S. (2010, July). Tribunal For Consumer Claims – An Alternative Method of Dispute Settlement For Consumers in Malaysia. Paper presented at Prosiding Seminar Kebangsaan MACFEA ke 14, Halatuju Penyelidikan Kepenggunaan. [14th National Seminar Proceeding MACFEA, Future Direction of Research in Consumerism: Issues and Challenges]. Equatorial Hotel Bangi, Bandar Baru Bangi, Selangor, Malaysia.

2 Singh, P. (2011). Providing Consumers an Efficacious, Simple, Inexpensive and Speedy Remedy—The Malaysian perspective. Malayan Law Journal, 3, 102-121. See also Ahmad, S. S.

S., & George, M. (2002). Dispute Resolution Process in Malaysia. Institute of Developing Economies. http://www.ide.go.jp/English/Publish/Download/AIS/pdf/17df.pdf.

3 See Jan, M. N. I., Mohamed, A. A. A., & Ali, A. (2010). Mediation in Malaysia: The Law and Practice. Selangor: LexisNexis.at p.2 for the main features of ADR.

4 See Rashid, S. K. (2000). Alternative Dispute Resolution in Malaysia. Unpublished textbook

UNIVERSITI TEKNOLOGI MARA LEGAL FRAMEWORK OF ALTERNATIVE DISPUTE RESOLUTION IN TRIBUNAL FOR CONSUMER CLAIMS IN MALAYSIA